On 4th of May 2006, there was an interesting decision by the Environment Court regarding a proposed (actually, well underway) development of a rectangular piece of land of approximately 38 hectares, situated between the Main Trunk Railway Line and the coast, approximately 300 metres south of the Moeraki boulders.
Mr. MacTavish appealed the Waitaki Districts granting of resource consent on 14 April 2004, and the Environment Court agreed with the appellant, on several grounds.
The full text of the Decision follows in the comments (not a great format – so if you prefer a copy of the original in pdf format, drop me an email to mailto:l_h_paterson@hotmail.com.
Monday, September 11, 2006
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Decision No. A 053/2006
IN THE MATTER of the Resource Management Act 1991 AND
IN THE MATTER of appeals under section 120 of the Act
BETWEEN D & A MACTAVISH
(ENV 00029/05)
Appellant
AND WAITAKI DISTRICT COUNCIL
Respondent
AND HERZOGS INVESTMENTS LTD
Applicant
BEFORE THE ENVIRONMENT COURT
Environment Judge R G Whiting (presiding)
Environment Commissioner 0 M Borlase
Environment Commissioner W R Howie
HEARING at Oamaru on 28 February, 1 and 2 March 2006
APPEARANCES
Mr and Mrs MacTavish for themselves
Mr M Garbett for Waitaki District Council
Mr L Anderson for Herzogs Investments Limited
DECISION
Introduction
[ 1 ] Approximately half an hour's drive south of the township of Oamaru, State Highway 1 and the Main Trunk Railway converge and run parallel relatively close to the east coast of the South Island. Here the coastline is characterised by the gentle crescent of a mainly sandy beach with a very shallow gradient. The south of the beach is terminated by the Moeraki Headland upon which the settlement of Moeraki is located. To landward the beach is contained by low coastal cliffs. A feature of the beach is the famous Moeraki boulders1. Approximately 300 metres south of the Moeraki boulders, there is a rectangular piece of land of approximately 38 hectares situated between the Main Trunk Railway Line and the coast.
[2] A 9-lot by 4-hectare subdivision has been established on this property by the applicant, following the grant of a resource consent on 14 April 2004. The resource consent had a controlled activity status. On 15 September 2005, following further application, consent was granted for Lots 1 and 2 of the original subdivision to be divided into 6 lots (giving an additional 4 lots) with areas between 1.2 and 1.6 hectares.
[3] Attached as Appendix 1 is a map dated June 2005 showing the proposed subdivision of the 2 lots into 6 lots. It also shows the balance of the original subdivision.
[4] The appellants appealed the grant of the consent on the basis that further subdivision would:
(i) Adversely affect the rural amenity;
(ii) Adversely affect the coastal environment;
(iii) Be contrary to the objectives and policies of the relevant plans;
(iv) Create a precedent and compromise the integrity of the district plans.
The hearing
[5] The hearing took place in Oamaru on 28 February, 1 and 2 March 2006. We heard from a representative of the applicant, two planning witnesses, three landscape architects, two engineers and the two appellants who are nearby residents.
[6] The main issues, identified in paragraph [4] above were addressed by the evidence. We carried out a site visit of the area for the purpose of fully understanding and assessing the evidence.
Status and statutory basis for decision
[7] It was agreed that the proposed 6-lot subdivision was a non-complying activity under both the transitional plan and the partly operative district plan. It being a noncomplying activity, section 104(D) applies and the proposal must pass through the two gateways, as they have been described, in that section.
[8] The following provisions of section 104 apply:
(i) Part II - section 104(1);
(ii) Any actual and potential effects on the environment - section 104(1)(a);
(iii) The relevant provisions of:
(a) The New Zealand Coastal Policy Statement;
(b) The Otago Regional Policy Statement;
(c) The Otago Regional Plan;
(d) The Waitaki District Council Transitional Plan;
(e) The Waitaki District Partly Operative Plan; and
(f) The Waitaki District Landscape and Visual Amenity Plan Change 2/Variation 2 - section 104(1)(b)
(iv) Precedent and plan integrity - section 104(1)(c).
[9] We propose to consider the two gateway tests and then the relevant gateway tests and then the section 1.04.
The gateway tests
Is the proposal contrary to the objectives Ad policies of the relevant plans?
[10] We first propose to deal with the second gateway, namely whether the proposed activity would be contrary to the objectives and policies of the relevant plans. There are three relevant statutory instruments to be considered:
(i) the transitional plan
(ii) The partly operative plan; and
(iii) Plan Change 2/Variation 2 roe partially operative district-plan.
The transitional plan
[11] The transitional plan was formulated under the Town and Country Planning Act 1977. Consequently its objectives and policies are broad in nature. Of relevance are objectives 10.2(a) and 10.2(d) which state:
10.2(a)
To maintain the visual amenity and environmental quality of the county.
10.2(d)
To exercise some control of discretionary judgment over the design and appearance of any development, to protect the visual environment.
[12] Both policies are written in very board terms. They are relevant to these proceedings because Mr and Mrs MacTavish maintained that the proposal is unacceptable in the coastal environment because of its visual impact. They also argued that the proposal would destroy the rural amenity currently enjoyed by those living in the area.
[13] Both of these broad policies are directed at visual and amenity effects. Thus whether the proposal is contrary to them would depend on our finding on those matters.
One other objective also has some relevance - namely 10.3(a). The objective is aimed at protecting areas and objects of special interest and beauty. This would include the Moeraki boulders. Again whether the proposal would be contrary to that objective would depend on our finding of any effects, if any, an the boulders and its immediate locality.
The partly operative plan
[14] As would be expected the partly operative plan has a much wider set of objectives and policies specifically directed at a range of matters relevant to subdivision including:
(i) Takata whenua values
(ii) Open space and recreation
(iii) Natural hazards
(iv) Energy
(v) Infrastructure
(vi) Financial contributions
(vii) Utilities
(viii) Rural - particularly protection of high-class
(ix) Landscape and nature conservation
[15] The focus of the evidence in these proceedings was specifically addressed at the effect on rural amenity and the coastal landscape. The plan seeks to provide a level of rural amenity by promoting moderately sized rural allotments, and maintaining clear distinctions between the urban and rural areas (See particularly 16.5.1 objective 4 - rural amenity and the policies thereunder particularly 16.5.2.1 and 16.5.2.8).
[16] Of particular importance to these proceedings is 16.8.2 Landscape Objective which states:
Protection and enhancement of natural features and landscapes within the district.
[17] Of equal importance are the objectives and policies under Issue 8 - Nature Conservation Values particularly objective 16.9.2.2:
The enhancement of the quality of water the management of the coastal environment, wetlands, lakes, rivers and their margins and the protection of them from inappropriate subdivision, use and development.
And policy 16.9.3.7: X`
To manage the effects of the use, development and protection on the natural
character of the coastal environment having regard to the landscapes and the indigenous vegetation or habitat for indigenous fauna at a locality and the quality of the coastal water.
[18] The objectives and policies relating to landscapes, and the management and protection of the coastal environment, reflect the mandatory directions in section 6 to recognise and provide for:
(a) Preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use and development;
(b) The protection of outstanding natural features of landscapes from inappropriate subdivision, use and development.
[19] These mandatory directions are also echoed in the Coastal Policy Statement and the Regional Policy Statement. We identified the above objectives and policies as being the objectives and policies in the plan to which the opposition to the proposal by Mr and Mrs MacTavish were mainly directed. We have not specifically referred to the objectives and policies relating to other relevant matters that we identified generally, because it seemed to be accepted that the proposal is in accord with those matters. It is the effect of the proposal on rural amenity and the coastal landscape that was of major concern to the appellants. Whether the proposed subdivision is contrary to the objectives and policies we have identified will depend on our finding with respect to the effects of the proposal on the landscape, the coastal environment and the rural amenity.
Plan Change 2/Variation 2
[20] Section 16.8 of the partly operative plan headed Issue 7 - Landscape provides as one of its policies, that the Council seek a Variation to the district plan that identifies natural features and landscapes, and will introduce objectives, policies and methods to assist in the protection of such areas from inappropriate subdivision, use and development. Consequently Plan Change 2/Variation 2 to the partially operative district plan addressing these issues was notified on 6 August 2005. It seeks to deal with the issues of landscapes and visual amenities throughout the Waitaki District, thus enabling the Council to meet its obligations under sections 6(a) and (d) of the Act.
[21] Mr Graeme Densem, a consultant and landscape architect acting on behalf of the Waitaki District Council, set out in his evidence the methodology adopted for the formulation of this Plan Change/Variation.
[22] The method adopted was to undertake a detailed study of the landscape characteristics found throughout the Waitaki District, and to accordingly assign an appropriate landscape category to each area. Of interest to the present proceedings is the defining of an area of the Moeraki Hinterland as an outstanding landscape. "This is on account of the national significance of the boulders as one of New Zealand's takata whenua, scientific and scenic icons ,, 3.
[23] The purpose of this was explained by Mr Densem as follows:
The intention is to retain in a natural rural state all remaining sections of the coastal setting surrounding the boulders. This includes the main public view corridor and approach to the site from the State Highway, and the DOC and commercial visitor facilities, carparks and buildings. In particular, the intention would be to avoid further subdivision or building within the area and retain as visually open a state as possible, as at present.
[24] Mr Densem told us that had the options still been open to him, his preference would have been for the outstanding area to have extended over much of the appeal site and original subdivision land also. That is:
Because that land also forms part e` visual hinterland of the boulders and public views from State Highway 1 a - 'he railway. My opinion is that it would have been desirable, if possible, to e - J the outstanding controls over much of this hinterland also4.
[25] By the time the landscape study fieldwork was carried out the subdivision, roading, fences and plantings had already been constructed on the original subdivision. Hence, he did not believe it would have been practicable or equitable to extend the outstanding controls to this area.
[26] On the coastline north and south of the outstanding area, the previous coastal protection strip 100m inland of MHWS is retained in the Variation, including the appeal site.
[27] The proposed Change/Variation is at an early stage of its statutory process. Notwithstanding, it was something that was foreshadowed in the policy provisions of the partly operative plan. The purpose and intention of the Change/Variation is to plan for a long-term enclave surrounding the boulders. The proposed outstanding area extends from State Highway 1 to the coast. It also extends from Moeraki Boulders Road to the north end of the boulders scenic reserve, therefore adjoining the north end of the appeal site.
[28] The objectives and policies of the proposed Change/Variation seek to maintain or enhance the amenity, nature conservation values and landscape character through the subdivision process. It reinforces what is already in the plan, namely that subdivision, use and development are to be managed so that the values identified within the outstanding or significant natural features, the outstanding landscapes, and the coastal landscapes are protected from inappropriate use and development6.
[29] The effect of the proposed Change/Variation on the appeal site is limited, as the proposed outstanding area does not extend on to the appeal site. However the fact that it abuts the appeal site creates a higher threshold with respect to the appeal site to ensure development does not detract from the outstanding values recognised.
Does the proposal have adverse effects that are more than minor?
[30] The real issue here was whether the proposal would adversely affect the amenity of the rural area and adversely affect the coastal character and landscape.
[31] The Moeraki boulders, directly north and in view of the application site, are the most visited tourist attraction in the Waitaki District. The coastal amenity of this area is enjoyed by 250,000 plus visitors annually and according to the evidence its character is unique.
[32] We heard expert landscape evidence from two expert witnesses, Mr Andrew Craig called by the applicant, and Mr Graeme Densem called by the Council. They discussed the proposal in the context of the surrounding area, particularly the Moeraki boulders, and in light of the relevant statutory instruments and Part 2 of the Act.
[33] Mr Craig in particular carried out an analysis of the proposal against the provisions of the relevant statutory instruments including those provisions which require the consideration of landscape and coastal matters. He assessed the proposal from the perspective of the effect on the landscape from different aspects such as State Highway 1, the beach and the Moeraki boulders. He concluded:
That the effects of the proposal on the adjoining significant natural features and natural qualities of the environment will not be more than minor.
[34] Mr Densem "peer reviewed" Mr Craig's evidence and came to a similar, conclusion.
[35] Both Mr Densem and Mr Craig assessed the landscape effects against the changed character brought about by the original subdivision. In other words, they assessed the landscape effects in comparison to what is already consented (See Densen, EiC, paragraph 28; and Craig, EiC, paragraph 4.2.). Thus, their starting point was the environment with the original subdivision, which has now been constructed and the lots of which are under the process of being sold, and the development of those blocks with a house and cartilage. They also had regard to landscaping conditions proposed for the new subdivision, which could lessen the impact of views by the many people who visit the Moeraki boulders.
[36] We consider that the evidence of both witnesses, by limiting their-analysis to the additional effects on the landscape over and above the existing and potential effects of the consented subdivision was too simplistic. There is merit in the argument of Mr and Mrs MacTavish that `piggy backing" the proposed subdivision on the back of the consented subdivision creates a creeping or cumulative effect that is more than minor.
[37] In support of their argument they gave the following evidence in their joint statement:
At the moment, Lots 1 and 2 are a visual buffer zone between the Densem house sites of the southern end of the subdivision and the boulders recreation reserve. If these lots are subdivided again, this buffer zone would not only be removed, but the urbanised "atmosphere would actually be intensified in this most sensitive corner of the development"!
[38] Support for the argument of Mr and Mrs MacTavish can be found in the following passage from the Environment Court in Kuku Maru Partnership v Marlborough District Council9 In discussing the meaning of effect as defined in the Act the Court said that the definition of effect means:
...that if an existing activity has adverse effects, and a proposed activity also has an adverse effect even if only minor, which would add to the existing effects, then the definition requires a consideration of both. It would be an exception to the permitted baseline concept, but only to the extent that one could have regard to existing adverse effects when, and only when, taken together with the new effect, they produce a synergetic impact on the environment.
[39] We agree with that analysis.
[40] We find that this piece of land, situated where it is near the coast and close to the Moeraki boulders, has a degree of sensitivity. Mr Densem told us that if the land had not already been subdivided much of the site would have been included in the proposed outstanding area which adjoins the north end of the appeal site.
[41] In our view, notwithstanding the mitigation measures in the proposed conditions of consent, this sensitive piece of coastal land should not be developed further. We find the effects of the existing subdivision, when taken together with the potential effects of the proposed subdivision, would produce a synergetic effect on this sensitive coastal environment that would be more than minor.
[42] The objectives and policies of the pat operative plan and Change 2/Variation 2 place a strong emphasis on the value of the coastal environment and existing landscapes. They also emphasise the protection of them from inappropriate subdivision and development. The Moeraki boulders are recognised for their takata whenua importance, their scientific importance and scenic importance. To develop the appeal site further, beyond what can presently be developed as of right, would in our view go beyond the threshold of more than minor effects, and be contrary to the strong objectives and policies of the statutory documents.
[43] It follows that the proposal fails to pass through either of the two gateways. Rural density
[44] Notwithstanding our findings in the previous section of this decision; we briefly consider the effects on rural amenity. Again this was discussed in some detail by the two landscape architects. Their combined views were encapsulated by Mr Densem when he said:
In the present case I accept the 4 additional lots, creating 6 total at the higher density of 1.2 - 1.6 ha (lot size), will create a node of higher density within the wider context of the approved subdivision. However the node is small in size compared to its context, and also proposed at a density which is well below the maximum at which rural character is fully lost. I therefore accept that rural amenity will continue in terms of the discussion of the previous paragraphs and the diminution of that amenity from the 4 additional (6 total) lots will be minor.
My opinion is that the main diminution of rural amenity occurred with the original subdivision, speaking in the past tense as the subdivision is approved although the visual change is yet to occur. It was at this point that irreversible loss of the openness (spaciousness) and pastoral dominance (absence of buildings) that were key to the previous rural-pastoral character occurred. What replaced it is still rural, but of rural-residential character.
This is the context in which I conclude the additional rural-residential density would constitute a minor change to the existing approved, albeit yet to come into being, landscape character.
In my opinion the same would not be the case if the densities of these 6 lots ere to be repeated over the full site of the previous subdivision or over other sites in the surroundings. These proposed six houses can be absorbed because they will assume the character of a minor 'beach settlement' as +s common and well-established along the Otago coast. This would exist as a small node within a context of lower densities surrounding.
[45] Again it is clear from Mr Densem's evidence that the starting point for his assessment was the environment as it exists, and will potentially exist following completion of the consented subdivision. For the reasons we have already given we consider this to be too simplistic. Again, for the reasons given, we consider the combined or cumulative effects of the two subdivisions should be taken account of in any assessment of rural amenity. In this aspect Mr and Mrs MacTavish in their evidence had this to say:
...(d) The subdivision proposal was crucial in determining the degree of rural character retained by the entire block. Any intensification of building there would have a high visual impact from State Highway 1 and from the western approach to the boulders. Any potential for mitigation for the visual effects and loss of openness and spaciousness caused by the first subdivision would be lost.
[46] We find that the overall cumulative effect creates a diminution of rural amenity that is more than minor.
Evaluation of proposal
[47] Notwithstanding our findings that the proposal fails to pass through the two gateway tests, we nevertheless would still refuse the application in the exercise of our discretion. As we have said the proposed site is situated on a sensitive area of coastline adjacent to an iconic tourist attraction, the Moeraki boulders.
[48] The site is closely connected with the coastal environment and adjoins an area of land extending northwards to the Moeraki boulders which is proposed as an outstanding area in the proposed Plan Change/Variation. To allow further development would not in our view be in accord with the principles and directions relating to coastal land in Part 2 of the Act, and reflected in the New Zealand Coastal Policy Statement, the Regional Policy Statement, the partly Operative District Plan, and the proposed Plan Change/Variation.
Precedent
[49] One of the grounds of appeal, was that to grant the proposal would create an unacceptable precedent and compromise the integrity of the district plans. Because of our finding of fact that the cumulative effects of the proposal would be more than minor, and that the proposal is contrary to the objectives and policies of the partly operative district plan and Change 2/Variation 2, there is no need to consider the question of precedent.
[50] However, for the sake of completeness, we simply say that the evidence did not, in our view identify any special characteristics that would make this site exceptional. This would be a factor that would have needed to be taken into account in the exercise of our discretion.
Demand
[51] We were referred to the decision of the Council, and their concern at the lack of suitably zoned land to meet the local need as being one of the grounds of its decision granting consent. In its decision the Council said:
In considering this application, the committee was mindful that the proposal was non-complying in terms of the proposed Waitaki District Plan. The committee noted that they could not grant consent unless they were satisfied that any adverse effects on the environment would be no more than minor or that granting consent would not be contrary to the objectives and policies of the proposed Waitaki District Plan. After considering all the evidence put to them at the hearing and taking into account the submissions of the proposal, the committee agreed that the proposal would not result in any significant adverse effects on the environment provided that it complied with the conditions imposed. In coming to the conclusion, the committee was conscious of the fact that on the one hand it had to remind itself of the requirements of the Resource Management Act and on the other hand, the fact that citizens in this part of the district were not adequately catered for in terms of lifestyle blocks of approximately 1 hectare each. On balance, the committee came to the conclusion that this proposal would go somewhere in bridging that gap.
[52] We can understand the Council's concern if the citizens in this part of the district are not adequately catered for in terms of lifestyle blocks of approximately 1 hectare each. However, if that is the case, then the appropriate way to remedy the problem is by the process of a plan change rather than by the making of ad hoc decisions. The plan change process enables a thorough investigation which would identify appropriate areas for rezoning of rural and coastal subdivision down to 1 hectare allotments.
Determination
[53] For the reasons given in this decision the Council's decision is quashed and the appeal is allowed.
[54] Costs are reserved. DATED, at Auckland this //For the Court:
DATED at Auckland this 4th day of May 2006
For the court
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